United States Senator Daniel Inouye passed away last week on December 17.

Senator Inouye was the senior member of Hawaii’s congressional delegation, a World War II hero, the first Japanese-American to hold office in Congress, and one of the longest-serving senators in American history. He was 88 years old.

Senator Inouye’s sad death presents a fortuitous occasion to rethink the law of American presidential succession.

At the time of his death, Senator Inouye held the office of Senate President pro tempore, a position that authorizes its occupant to preside over the Senate in the absence of the Vice President of the United States (whom the Constitution designates as the President of the Senate). By tradition, the Senate President pro tempore is the senior-most member of the majority party in the Senate.

Senator Patrick Leahy has since succeeded Senator Inouye as Senate President pro tempore. He is 72 years old.

The Senate President pro tempore occupies an important role: he is third in line to succeed to the presidency. In the event of the President’s death, incapacity or unavailability, the United States Constitution names the Vice President as the designated presidential successor. Next in line, by law, is the Speaker of the House of Representatives, then the Senate President pro tempore, and then each of the Cabinet Secretaries in order of departmental seniority as follows: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, and Secretary of Homeland Security.

This line of presidential succession exhibits at least three weaknesses.

The first problem involves the role of the Senate President pro tempore. Senate Presidents pro tempore are chosen based on neither their presidential qualifications nor their expertise in crisis management. They are elected as a formality based only on the length of their tenure in the Senate: whoever is the Senate majority party’s longest-serving senator becomes Senate President pro tempore. They have traditionally been septuagenarians, octogenarians and nonagenarians: Senator Inouye’s most recent predecessors as Senate President pro tempore were Senators Robert Byrd (92 years old), Strom Thurmond (99 years old), and Ted Stevens (83 years old). Given how old Senate Presidents pro tempore have tended to be, perhaps the United States would be better served by altogether excluding the Senate President pro tempore from the line of succession. How well can we expect an octogenarian to pilot the nation out of the turmoil that would attend a presidential vacancy?

The second problem concerns the order in which Cabinet Secretaries are ranked in the line of succession. The current order is based on the date upon which the department was statutorily created. So the oldest department’s Secretary is first in line and the newest department’s Secretary falls last. The Secretaries of State, Treasury and Defense, respectively, are the first three in Cabinet seniority and the Secretary of Homeland Security is last, only because it was created most recently in the aftermath of the terror attacks of September 11, 2001. Perhaps the United States could strengthen its line of Cabinet precedence by moving away from an order based on departmental seniority to one more appropriately based on departmental competence. The new line of Cabinet succession should at the very least elevate the Secretary of Homeland Security from last place in the line of succession because she is likely better prepared to succeed to the presidency than many if not most of the Cabinet Secretaries listed above her, namely the Secretaries of Commerce, Labor, and Veterans Affairs, to name just three.

There may be a third difficulty with the current line of presidential succession. At present, the Speaker of the House of Representatives is second in the line of succession to the presidency, behind only the Vice President. This order potentially undermines the principle of party continuity because, under the current line of succession, it is possible for a House Speaker to fill a presidential vacancy created by the death, incapacity or unavailability of a President from the opposing party. Such a disruptive breach of party continuity is very likely given that divided government has been the norm in American national politics since 1946. To illustrate, the current line of succession would have required Republican House Speaker Newt Gingrich to succeed then-President Bill Clinton, a Democrat, had Clinton and Vice President Al Gore been dead, incapacitated or unavailable. Likewise, Democratic House Speaker Tip O’Neill would have succeeded then-President Ronald Reagan, a Republican, in the absence of Reagan and Vice President George H.W. Bush. Or, today, Republican House Speaker John Boehner would succeed Democratic President Barack Obama in the absence of Obama and Vice President Joe Biden. The same problem of party continuity applies to the Senate President pro tempore.

There may be good reason to retain the current line of succession unchanged. Perhaps there is wisdom in designating the House Speaker and Senate President pro tempore as the second and third presidential successors, respectively, on the strength of the majority support they command in the Congress. In the event of the sudden death, incapacity or unavailability of the President, the country would arguably need the stability that only these kinds of strong congressional majorities can provide. It may also be the case that the House Speaker and the Senate President pro tempore are widely known to foreign leaders, whose help and support the United States might need were the country to find itself even temporarily without a President.

This is a debate worth having. The sad death of Senator Inouye’s sad death is therefore a useful occasion to rethink the law of American presidential succession, either to confirm that the current law is right for the times or to redesign it to serve interests that may not have been relevant or known to those who drafted the law to begin with.

One Response

Interesting that the President pro tempore are usually old Senators in their seventies and nineties. To become Speaker of the House or Senate President pro tempore the HoR and the Senate are required. But what if (for educational purposes), by some disaster or attack, like a nuclear war, the Senate or HoR are incapacitated completely? Will the Secretary of State remain as president, if the first three in line for succession are vacant, for as long as possible? Also, there is no age requirement because it’s the President’s job to appoint Cabinet members. Won’t the Head of each department have to meet the requirements of President? I am also curious if the line of succession ever reaches the Supreme Court in the event of Cabinet vacancy.

Your email address will not be published. Required fields are marked *

Comment

Name *

Email *

Website

Subscribe to I·CONnect

Enter your email address:

Submit to I·CONnect

We welcome substantive submissions via email on any subject of comparative public law. Submissions usually, though not always, range from 750 to 1000 words. All submissions will be reviewed in a timely fashion.
Please send submissions to contact.iconnect@gmail.com.